The State Bank Of India vs The District Collector
2021 Latest Caselaw 19039 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                   WP(C) NO. 4911 OF 2021
PETITIONERS:

    1    THE STATE BANK OF INDIA
         REPRESENTED BY ITS CHIEF MANAGER, STRESSES ASSETS
         RECOVERY BRANCH (S.A.R.B), LMS COMPOUND, OPPOSITE
         MUSEUM WEST GATE, VIKAS BHAVAN (PO).
         THIRUVANANTHAPURAM, PIN-695 033.

    2    SMITH RAJ,
         AGED 44 YEARS
         S/O N. MURALEEDHARAN PILLAI, RESIDING AT
         SUSHMITHAM, NELIPPALLY (PO), PUNALUR (VIA), KOLLAM
         DISTRICT, PIN-691 305.

    3    REMYA V,
         AGED 36 YEARS
         D/O RAVEENDRAN NAIR, RESIDING AT SUSHMITHAM,
         NELIPPALLY (PO), PUNALUR (VIA), KOLLAM DISTRICT,
         PIN-691 305.

         BY ADVS.
         JAWAHAR JOSE
         SMT.CISSY MATHEWS
         SRI.JAISON ANTONY



RESPONDENTS:

    1    THE DISTRICT COLLECTOR
         KOLLAM, PIN-691 013.

    2    THE TAHASILDAR,
         PUNALUR. MINI CIVIL STATION, KOLLAM DISTRICT, PIN-
         691 305.

    3    THE VILLAGE OFFICER,
         VALACODE, KALAYANAD, PUNALUR, KERALA, PIN-691 331.

    4    ANNAMMA SKARIAH,(DELETED)*
         W/O JOSE JOSEPH, RESIDING AT TEENA BHAVAN,
         KURIYANAYAM, KUMARAMKUL(PO), KOLLAM.
         *(4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY
 WP(C) NO. 4911 OF 2021            2

             AS PER ORDER DATED 22-07-2021 IN IA 2/2021 IN WP(C)
             4911/2021).

     5       JOSE JOSEPH,
             AGED 55 YEARS
             S/O P.JOSEPH, RESIDING AT KOCUVILA VEEDU,
             NELIPPALLY (PO), PUNALUR (VIA), KOLLAM DISRICT,
             PIN-691 305.*(SUBSTITUTED)
             *(ADDRESS OF R5 IS SUBSTITUTED AS
             JOSE JOSEPH, AGED 55 YEARS, S/O. JOSEPH, RESIDING
             NEAR THE HOUSE OF BABU EDUKKA, THOLICODU,
             MULAMTHADAM, PUNALUR(P.O) KOLLAM DISTRICT, PIN-
             691305 AS PER ORDER DATED 22-07-2021 IN IA 1/2021
             IN WPC 4911/2021).

           BY ADVS.
           GOVERNMENT PLEADER
           JOBI.A.THAMPI
           S.R.REMYA




           SMT. AMMINIKUTTY - SR.GP




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   13.09.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 4911 OF 2021                3

                                 JUDGMENT

The State Bank of India, as the 1st petitioner

and the auction purchaser of certain extents of

property sold by them under the provisions of the

Securitisation and Reconstruction of Financial

Assets and Enforcement of Securities Interest Act

('the SARFAESI Act' for brevity), have approached

this Court impugning Ext.P4 proceedings issued by

the 3rd respondent - Village Officer informing them

that Transfer of Registry of the property covered by

Ext.P3 Sale Deed cannot be effected in favour of

petitioners 2 and 3, because there is an order of

attachment on it from the Court of the Chief

Judicial Magistrate, Kottayam.

2. The petitioners say that the attachment

referred to in Ext.P4 is not reflected in Ext.P5

Encumbrance Certificate, while certain other orders

are there, which are all, however, much after the

date of mortgage of the property in favour of the 1 st

petitioner - Bank by its original owner, namely

respondent No.5. The petitioners say that,

therefore, the reasons stated in Ext.P4 are

untenable, particularly because the document has

already been registered and the Transfer of Registry

is only a consequence thereof.

3. I have heard Shri.Jawahar Jose, learned

counsel for the petitioners; Shri.Jobi A.Thampi,

learned counsel appearing for respondent No.5 and

the learned Senior Government Pleader,

Smt.K.Amminikutty, appearing for respondents 1 to 3.

4. Shri.Jawahar Jose, in supplementation of the

afore case of his clients, submitted that the

mortgage over the property in question was executed

by the 5th respondent - its original owner, on

07.01.2015 and that all the attachments on it, as

are recorded in Ext.P4 have been made thereafter. He

reiterated that the attachment mentioned in Ext.P4

order is not even reflected in Ext.P5; and thus

prayed that the reliefs sought for in this writ

petition be allowed.

5. Shri.Jobi A.Thampi, learned counsel appearing

for the 5th respondent, did not contest the afore

factual submissions of Shri.Jawahar Jose, but

contented that the property in question has been

sold by the Bank in favour of petitioners 2 and 3,

without following due procedure and in violation of

the applicable Statute and Rules. He prayed that,

therefore, the reliefs sought for in this writ

petition may not be granted.

6. Smt.K.Amminikutty, learned Senior Government

Pleader, appearing for the official respondents,

submitted that Ext.P4 has been issued only because

the Village Officer saw that there was an attachment

over the property in question. She submitted,

however, if this Court is inclined to direct the

said respondent to effect its Transfer of Register

in favour of petitioners 2 and 3, there does not

appear to be any legal impediment in doing so;

however praying that this Court may not issue any

further directions against the official respondents.

7. I must say that the submissions of the

learned counsel for the 5th respondent cannot appeal

to me because, if his client has a case that sale

has not been properly and validly conducted by the

1st petitioner - bank, then his remedy is to approach

the competent Authority or the competent Forum,

rather than impell such contentions in this writ

petition, where the conduct of sale by the 1st

petitioner in favour of petitioners 2 and 3 is

admitted.

In the afore circumstances, I allow this writ

petition and direct the 3rd respondent - Village

Officer to accede to the request of the petitioners

for Transfer or change of Registry de hors what is

stated in Ext.P4; and to issue appropriate orders

thereon, as expeditiously as is possible, but not

later than two weeks from the date of receipt of a

copy of this judgment.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/23.9

APPENDIX OF WP(C) 4911/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF THE DEPOSIT OF TITLE DEED DATED 7.1.2015 WHICH WAS EXECUTED BY THE 5TH RESPONDENT

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 17.12.2018 IN WPC NO 40339/2018

EXHIBIT P3 TRUE COPY OF THE REGISTER SALE DEED DATED 23.12.2020 BEARING NO 2698/2020 OF SRO

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 3.2.2021 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE WITH RESPECT TO THE SECURED ASSET WHICH WAS SOLD UNDER THE SARFAEST ACT

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 25.9.2020 IN WPC NO 14209/2020